Bringing Fairness to Extradition Hearings: Proposing a Revised Ev
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Singh: Bringing Fairness to Extradition Hearings: Proposing a Revised Ev BRINGING FAIRNESS TO EXTRADITION HEARINGS: PROPOSING A REVISED EVIDENTIARY BAR FOR POLITICAL DISSIDENTS I. INTRODUCTION "Physical death I do not fear; death of conscience is the real death."' The right to self-determination is the common language, the common voice, the common struggle of all revolutionaries. It is a motivation that speaks to truth, justice, and ultimately peace. Yet, shrouded by fear, the voices of revolutionaries are being suppressed.2 For security, simplicity, and clarity, we label those who stand against repressive regimes as terrorists, without distinction, without contemplation. Fearful of being a haven to alleged terrorists, the United States is sending those who seek refuge from repressive regimes back to their torturers.3 The willingness to embrace voices of 1. CYNTHIA MAHMOOD, A SEA OF ORANGE: WRITINGS ON THE SIKHS AND INDIA 23-24 (2001) (quoting Jamail Singh Bhindranwale who led the movement for Sikh civil and human rights and vociferously protested the second class status of Sikhs and other minorities in India). 2. See generally John Patrick Groarke, Revolutionaries Beware: The Erosion of the Political Offense Exception Under the 1986 United States-United Kingdom Sup- plementary Extradition Treaty, 136 U. PA. L. REV. 1515 (1988) (arguing that the United States amended its extradition treaties with other Western countries in order to facilitate the extradition of alleged terrorists); see also Susie Alegre, European Arrest Warrants: A Lapse in Justice, INT'L HERALD TRIBUNE, Feb. 2, 2004, avail- able at http://www.iht.com/articles/2004/02/02/edalegre-ed3-php (noting that im- mediately after September 11, 2001, the European Arrest Warrant emerged which did away with "messy extradition procedures" among EU countries). 3. See generally Cheema v. Ashcroft, 383 F.3d 848 (9th Cir. 2004) (holding that the Immigration and Naturalization Service (INS) board did not provide enough evidence pointing to Cheema as a security risk). After being in detention for a dec- Published by CWSL Scholarly Commons, 2007 1 California Western International Law Journal, Vol. 38, No. 1 [2007], Art. 12 178 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 38 dissent has dissipated, and safeguards that were once in place for political dissidents, in the arena of extradition and asylum law, are quickly being eroded.4 This Comment focuses on the story of Kulvir (or Kulbir) Singh "Barapind" and examines how inequitable extradition procedures, especially those relating to the political offense exception, undermine due process for the relator.5 Barapind's story echoes the story of other folk heroes. 6 To Sikhs, Barapind is a human rights activist, advocating for a separate nation, Khalistan; to the Indian government, he is a terrorist.7 For the Indian government, his identity is not torture but defined by his sacrifice in challenging oppression amidst 8 by the Indian government's desire to suppress the will of the Sikhs. In India, from 1984 to 1995, to advocate for self-determination or human rights was to seal one's death warrant. 9 Whether one was a ade, Mr. Cheema decided to waive his Convention Against Torture (CAT) applica- tion because the government had appealed the favorable Ninth Circuit opinion. Camille T. Taiara, Harpal Singh Cheema Chose "Voluntary" Deportation, THE SIKH TIMES, Aug. 7, 2006, available at https://www.sikhtimes.com/ news_080706a.html. It is a government tactic to prolong the granting of asylum to suspected militants and keep them indefinitely detained until they voluntarily waive CAT and go back to the countries which tortured them. Id. 4. See, e.g., Groarke, supra note 2, at 1515-16 (explaining how the redefinition of the political offense exception within the new Supplementary Treaty between the United States and the United Kingdom no longer allows magistrates to decide whether crimes are of a political nature); Alegre, supra note 2. 5. Within this context, the term "relator" describes the individual whom the re- questing country seeks to be extradited. For the purposes of this Comment, the terms "relator" and "defendant" are used interchangeably. 6. Najeeb Hasan, The 11-Year Debate: For a Decade an Indian National Has Been Held in California Jails. He's Accused of Being a Terrorist. Is He?, METRO ACTIVE, Oct. 13, 2004, available at http://www.metroactive.com/papers/metro /10.1 3.04/barapind-0442.html. 7. See Special Correspondent, Punjab Terrorist Brought from U.S., THE HINDu, June 20, 2006, http://www.hindu.com/2006/06/20/stories/2006062 006461200.htm ("Kulbir Singh Kulbeera alias Barapind of the Khalistan Commando Force was brought to India by a Punjab police team on Sunday night from the United States following his extradition ordered by the competent American court."). 8. Brad Adams, Dead End in Punjab, HUMAN RIGHTS WATCH, December 17, 2004, available at http://hrw.org/english/docs/2004/12/17/india9909.htm ("To de- stroy the movement [for Khalistan], security forces were given a free hand, leading to the worst kinds of abuse."). 9. Id. For example, Jaswant Singh Khalra was abducted and killed after he ex- https://scholarlycommons.law.cwsl.edu/cwilj/vol38/iss1/12 2 Singh: Bringing Fairness to Extradition Hearings: Proposing a Revised Ev 2007] BRINGING FAIRNESS TO EXTRADITION HEARINGS 179 nonviolent protestor or a freedom fighter, the threat of "disappearance" was constant.' ° It was during this period that Barapind became an advocate for a separate homeland for Sikhs.'' After being tortured by the Indian government, 12 Barapind fled for his life under an alias and sought asylum in the United States. 3 From the beginning, Barapind's asylum case was complicated by the initial adverse credibility finding of the Immigration Judge (IJ) in 1994.14 Eventually, the Ninth Circuit rejected the IJ's determination and "faulted the IJ for treating, as established facts, India's criminal allegations made against Barapind in the extradition request.' 15 That extradition request was filed by India in 1997.16 After Barapind appealed for a continuation of the asylum proceeding, the Ninth Circuit held that asylum and extradition were exclusive proceedings and directed that the asylum proceedings be held in abeyance pending the outcome of the extradition hearing. 17 The Ninth Circuit en banc, posed illegal cremations of unidentified corpses by the Punjab police. Press Re- lease, Ensaaf, Anniversary of the Abduction of Jaswant Singh Khalra (Sept. 6, 2007), http://www.ensaaf.org/news/pr2007-09-06.php. 10. Press Release, Ensaaf, Punjab Police: Fabricating Terrorism through Illegal Detention and Torture (June 2005 to Aug. 2005) at 7 (Oct. 5, 2005), available at http://www.ensaaf.org/docs/ft-report.php. 11. Hasan, supra note 6. 12. In re Extradition of Singh, 170 F. Supp. 2d 982, 987 (E.D. Cal. 2001), aff'd in part, rev'd in part, remanded to sub nom. Barapind v. Enomoto, 400 F.3d 744 (9th Cir. 2005) (en banc) (using the district court opinion to flesh out background, history, and facts that were accepted by the Ninth Circuit), remanded to Barapind v. Amador, No. 1:01-CV-06215 OWW, (E.D. Cal. 2005) and In re Extradition of Singh, No. 01-6215 OWW, 98-5489 OWW (E.D. Cal. 2005). 13. Id. 14. Id. at 985. An adverse credibility finding is when an Immigration Judge (IJ) does not find the individual seeking asylum to be credible. See Immigration and Nationality Act of 1952 § 208(b)(2)(B)(iii), 8 U.S.C.A. § 1158(b)(2)(B)(iii) (West 2007). The IJ may consider, for example, that there are numerous inconsistencies or a lack of detail and specificity in the applicant's story. Id. 15. Singh, 170 F. Supp. 2d at 985 (affirming the district court's decision to re- mand for further proceedings). 16. Id. at 986. 17. Id. Published by CWSL Scholarly Commons, 2007 3 California Western International Law Journal, Vol. 38, No. 1 [2007], Art. 12 180 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 38 in Barapind v. Enomoto, gave the final decision to extradite Barapind in 2005.18 Through the lens of Barapind, this Comment analyzes and challenges both the presumption of fairness accorded to the requesting state and the extreme evidentiary burdens placed on the defendant. The scope of the Comment is limited only to cases where the political offense exception is at issue in extradition hearings. Part II summarizes the background of extradition law focusing on the political offense exception, the rule of non-inquiry,' 9 and the rule of non-contradiction. 20 Part III describes the Indian government's past and present use of coercive and abusive investigatory techniques. Part IV argues that, although courts are bound by the rule of non-inquiry, the rule should not bar the court from scrutinizing a foreign government's investigatory techniques for gathering evidence to form probable cause. Then, Part V proposes that a Franks hearing, 21 a hearing in which a defendant can challenge the veracity of the government's evidence, should replace the vague, overbroad rule of non-contradiction. Finally, Part VI concludes that removing the presumption of fairness given to foreign governments and relaxing the evidentiary burden on the defendant is in accordance with international human rights norms. Part VI also warns that in ignoring 18. Barapind v. Enomoto, 400 F.3d 744, 753 (9th Cir. 2005). 19. The rule of non-inquiry precludes courts from scrutinizing foreign govern- ments' judicial systems and the procedures or treatment that await defendants in their countries of origin. Comejo-Barreto v. Seifert [sic], 218 F.3d 1004, 1009 n.5 (9th Cir. 2000), overruled on other grounds by Arnbjornsdottir-Mendler v. United States, 721 F.2d 679, 683 (9th Cir. 1983); Gallina,278 F.2d at 79.